DOJ Appeals Abortion Pill Ruling to Supreme Court

Garland announces request for emergency relief restoring full access to mifepristone
By Newser Editors and Wire Services
Posted Apr 13, 2023 1:37 AM CDT
Updated Apr 13, 2023 1:38 PM CDT
Court Preserves Access to Abortion Drug, With a 'But'
FILE - A patient prepares to take the first of two pills for a medication abortion during a visit to a clinic in Kansas City, Kan., on Wednesday, Oct. 12, 2022.   (AP Photo/Charlie Riedel, File)
UPDATE Apr 13, 2023 1:38 PM CDT

The Justice Department has announced it will not settle for the limited access to the abortion drug mifepristone that was restored late Wednesday by a federal appeals court. Attorney General Merrick Garland said the Justice Department "strongly disagrees" with the ruling, per ABC News, in announcing Thursday that the case is going to the top. "We will be seeking emergency relief from the Supreme Court to defend the FDA's scientific judgment and protect Americans' access to safe and effective reproductive care," Garland said, NPR reports. There was no indication whether the Supreme Court will take up the case.

Apr 13, 2023 1:37 AM CDT

A federal appeals court has preserved access to an abortion drug for now but under tighter rules that would allow the drug only to be dispensed up to seven weeks, not 10, and not by mail, the AP reports. The drug, mifepristone, was approved for use by the Food and Drug Administration more than two decades ago. It’s used in combination with a second drug, misoprostol. The 5th US Circuit Court of Appeals in New Orleans ruled Wednesday just before midnight. By a 2-1 vote a panel of three judges narrowed for now a decision by a lower court judge in Texas that had completely blocked the FDA’s approval of the drug following a lawsuit by an anti-abortion group. The lower court ruling had been on pause for a week to allow an appeal.

Under the appeals court order, the FDA’s initial approval of mifepristone in 2000 is allowed to remain in effect. But changes made by the FDA since 2016 relaxing the rules for prescribing and dispensing mifepristone would be placed on hold. Those include extending the period of pregnancy when the drug can be used and also allowing it to be dispensed by mail, without any need to visit a doctor’s office. The two judges who voted to tighten restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Trump. The third judge, Catharina Haynes, is an appointee of former President George W. Bush. She said she would have put the lower court ruling on hold entirely temporarily to allow oral arguments in the case.

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The decision could still be appealed to the US Supreme Court. In the meantime, Democratic leaders in states where abortion remains legal since the Supreme Court overturned Roe v. Wade last year say they are preparing in case mifepristone becomes restricted. Pharmaceutical executives this week also signed a letter that condemned the Texas ruling and warned that FDA approval of other drugs could be at risk if US District Judge Matthew Kacsmaryk’s decision stands. There is virtually no precedent for a lone judge overturning the medical recommendations of the FDA. Mifepristone has been used by millions of women over the past 23 years, and complications from mifepristone occur at a lower rate than problems in wisdom teeth removal, colonoscopies and other routine procedures, medical groups have recently noted.

(More mifepristone stories.)

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